Jerry R. Shedden, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs

381 F.3d 1163, 2004 U.S. App. LEXIS 17659, 2004 WL 1857700
CourtCourt of Appeals for the Federal Circuit
DecidedAugust 20, 2004
Docket04-7001
StatusPublished
Cited by1,059 cases

This text of 381 F.3d 1163 (Jerry R. Shedden, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jerry R. Shedden, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs, 381 F.3d 1163, 2004 U.S. App. LEXIS 17659, 2004 WL 1857700 (Fed. Cir. 2004).

Opinions

Opinion concurring-in-part and dissenting-in-part filed by NEWMAN, Circuit Judge.

DYK, Circuit Judge.

Appellant Jerry R. Shedden (“Mr.Shed-den”) appeals from the decision of the Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals’ (“BVA”) denial of his claim for clear and unmistakable error (“CUE”) in a 1994 BVA decision that denied service connection for a psychiatric disorder. Shedden v. Principi, No. 01-1534, 2003 WL 22020182 (Vet.App. Aug. 22, 2003). While the Court of Appeals for Veterans Claims erroneously stated that 38 U.S.C. § 105(a) does not create a presumption of service connection, we conclude that this error was harmless, and we affirm.

BACKGROUND

Mr. Shedden served on active duty in the United States Marine Corps from January 1968 to January 1972. After leaving service, Mr. Shedden made a claim for service connection for a psychiatric disorder that the Department of Veterans Affairs (“VA”) Regional Office (“RO”) denied in a February 1980 rating decision. In a [1165]*11651982 rating decision the RO denied Mr. Shedden’s claim-for service connection for post-traumatic stress disorder (“PTSD”). Neither of these decisions was appealed, and they became final.

Subsequently, Mr. Shedden requested that his claim of entitlement for service connection for a psychiatric disorder, including PTSD, be reopened because of new and material evidence. The RO denied this request in July 1988. That decision was appealed, and the BVA remanded to the RO for additional development. After a series of decisions by the RO continuing to deny Mr. Shedden’s claim for service connection, the appellant again appealed to the BVA.

In a June 1994 decision the BVA determined that new and material evidence had been submitted and reopened Mr. Shed-den’s claim, but it denied it on the merits. Reviewing Mr. Shedden’s claim de novo, the BVA found that during the period he was on active duty, “[t]he veteran’s service medical records [we]re silent as to any complaints, treatment or diagnosis of a psychiatric disorder.” In re Shedden, No. 89-25 959, slip op. at 6 (Bd. VetApp. June 2, 1994) (the “1994 decision”). The BVA further held that “[tjhere is also no showing of what could be an acquired psychiatric disorder either prior to or during service, or at a point sufficiently proximate to service as could be reasonably related thereto.” Id. at 10. Moreover, the BVA found that the veteran had failed to show that he was then suffering from PTSD. Id. at 4.

In December 2000 Mr. Shedden filed a claim alleging that there was CUE in the BVA’s 1994 decision. Among other things,1 Mr. Shedden contended that there was evidence in the record that he had suffered from a psychiatric condition during service and that this triggered a presumption of service connection under 38 U.S.C. § 105(a). In a 2001 decision the BVA rejected Mr. Shedden’s CUE claim holding that in the 1994 decision it correctly “found that a psychiatric disorder had not been incurred in or aggravated by active service” and that “[tjhe Board was not required to consider the provisions of 38 U.S.C.[ ] § 105(a).” In re Shedden, No. 01-02 277, slip op. at 31 (Bd.Vet.App. July 23, 2001). The BVA further held that, even if section 105(a) were applicable, the veteran’s

assertions that the statute creates a presumption of service connection is [sic] without merit. As the language of the statute indicates, an injury or disease that is incurred during active service is deemed to have been incurred in the line of duty and not the result of the veteran’s own misconduct. Service connection can be granted only for diseases or injuries that are incurred in the line of duty, and the statute creates a presumption that an injury incurred during active service was incurred in the line of duty. The statute does not pertain to whether the injury or disease was, in fact, incurred in active service.

Id. (citations omitted).

On appeal, the Court of Appeals for Veterans Claims agreed with the BVA that section 105(a) provides a presumption that an injury was incurred in the “line of duty,” but “does not grant presumptive service connection for an injury ... incurred in active duty.” Shedden v. Principi, slip op. at 3. The court further held that the veteran’s section 105(a) argument “d[idj not constitute a sufficient basis for [1166]*1166establishing CUE ... because he ha[d] not demonstrated how any of the asserted errors ... would have been outcome determinative of the June 1994 BVA decision .Id. Mr. Shedden timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION

“We review a claim for legal error in the decision of the Court of Appeals for Veterans Claims without deference.” Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir.2004).

I

Sections 1110 and 1131 of Title 38 of the United States Code provide compensation to veterans for personal injury or disease and for aggravation of a preexisting injury or disease, if they are incurred “in line of duty” and are service-connected. See 38 U.S.C. §§ 1110, 1131 (2000).2 We have recently had occasion to review the application of those provisions in the context of the presumption of soundness in Wagner. This case requires us to consider their application in the context of 38 U.S.C. § 105(a). Section 105(a) provides that:

[a]n injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veterans own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the persons own willful misconduct or abuse of alcohol or drugs.

38 U.S.C. § 105(a) (emphasis added).3 Here, we must consider whether the statutory language “incurred in line of duty” and “service-connected” mean the same thing. We conclude that they do.

The statute itself makes clear that “service-connected” means the same thing as “incurred in the line of duty.” 38 U.S.C. § 101(16) states that: The term service-connected means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service. 38 U.S.C.

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381 F.3d 1163, 2004 U.S. App. LEXIS 17659, 2004 WL 1857700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerry-r-shedden-claimant-appellant-v-anthony-j-principi-secretary-of-cafc-2004.